THE HIGH COURT OF LESOTHO
the matter between:-
ENTERPRISES DEVELOPMENT CO-OP APPLICANT
SAO INTERNATIONAL (PTY) LTD. 1ST
NKHAHLE 2ND DEFENDANT
of hearing : 26th of April
by the Honourable Mr. Acting Justice J.D. Lyons
the 28th day of April,2010
This is an
application for a decision of a judgment entered on 24 August 2009.
commenced these proceedings by way of summons on 10 August 2009. Its
Declaration was annexed to the Summons.
The second defendant
(Thabo Nkhahle) entered a notice to oppose. The first defendant (Sao
Sao International Pty. Ltd.), though served,
made no appearance.
By notice filed 11th
of August 2009, the plaintiff applied for "Summary Judgment to
be granted against (sic) Defendant in terms of prayers in
Plaintiff’s Summons as amplified by the Declaration", (my
An affidavit by
Thabiso Moletsane was used in support of this Summons. That affidavit
set out the evidence on which the Plaintiff
relied to support its
On 24 August 2009 Mr.
Justice Mofolo (Agt) ordered that the "application for Summary
Judgment is granted and prayers set out
in the Summons are granted as
A writ of execution
was subsequently issued. The deputy sheriff executed this as against
the goods of the second defendant and/or
his parents. The second
defendant now comes before the court to have the judgment (on which
the writ of execution was based) rescinded.
The question for the
court is whether there is a judgment against the second defendant.
Clearly there is not.
The plaintiff’s action involves a lease between it and the
first defendant. Nowhere in the declaration,
nor in the affidavit
accompanying the summons for summary judgment, is there a pleading or
any evidence that would support a case
against the second defendant.
The plaintiff’s own case is that the second defendant at all
times was acting as an agent (as
managing director) of the first
defendant. The second defendant may well be the beneficial owner of
the first defendant, but that,
of itself, does not make the second
defendant liable for debts of the first defendant company. (See
generally: Salomon v Salomon
Co. Ltd (1897) AC 22).
That the judgment was
against the first defended only is supported by the fact that the
summons itself seeks only judgment against
(singular). Furthermore the writ of execution was issued only at the
goods of the first defendant company.
That is evident on the face of
the writ itself.
this application is redundant. There can be no recession of the
judgment that does not exist, and on the plaintiff’s
material (pleadings and evidence), cannot exist as no case is made
out against the second defendant. The Summary Judgment
of my brother
Judge can only be read as a judgment against the first defendant
company. It cannot be interpreted as against the
submissions are typical of too many I see in courts. They are loaded
with theory, as if answering a university
exam or preparing for a
student moot, but they are bereft of practical fundamentals. This is
the wrong approach.
The practical problem
facing counsel here is a judgment. First its terms must be looked
at. Having done that, it can be discovered
that it is expressed in
terms of ‘judgment as prayed in the Summons. Therefore the
Summons seeking judgment must be examined
to see what is in the
Once this is done, it
can be readily seen that the prayer for relief seeks judgment against
‘Defendant’ – singular.
There are two defendants
in this action. The Summons does not nominate which defendant. To
decide this point, the Summons refers
to the originating pleading –
the Declaration. It is to the Declaration that one must turn one’s
attention. In so
doing, it can be seen that no case is pleaded
against the second defendant. As pleadings must embody the material
by the plaintiff, and as the evidence alleged must
be put before the court in that affidavit which accompanied the
judgment, it is to this that counsel must turn their
attention. On reading this affidavit, it is clear that no facts are
against the second defendant that would support a finding at
law against the second defendant. It does, however, allege sufficient
evidence as against the first defendant.
By logical deduction
(an essential tool for any lawyer), the ‘Defendant’
nominated in the Summons seeking judgment must
be the first
defendant. It is therefore only as against the first defendant that
judgment has been granted. This is confirmed
when counsel look (as
they should have, but clearly did not), at the subsequently issued
writ of execution. That writ was issued
solely on the basis of a
judgment having been issued. That writ of execution names only one
party against whom the supporting
judgment must have issued –
the first defendant.
This examination of
pleadings and evidence and the application of logic thereto, is the
thought process that must be undertaken
by a counsel equipped with
the fundamentals of the actual practice of law.
The application must
be dismissed. I make order as the costs.
The plaintiff may
wish to amend the judgment order of 24 August 2009 to reflect the
obvious fact that the judgment is only against
the first defendant
company Sao Sao International Pty Ltd, as was applied for.
Applicant : Mr. ‘Mopa
Respondent : Mr. Malefane
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